APPEAL COURT HANDS DOWN HARSHER TERMS FOR DRUG MULES

Skin Colour Isn't Relevant, Judges Say

Three black women who argued that their skin colour and poverty led them to
courier cocaine should not have received light sentences for smuggling the
drugs, the Ontario Court of Appeal ruled yesterday.

The higher court handed down harsher sentences for the women arrested as
so-called drug mules after they were found bringing cocaine to Canada from
Jamaica. Each of them had successfully argued that systemic racism led to
their crimes, but as of yesterday that defence became harder to use.

"A sentencing proceeding is . . . not the forum in which to right perceived
societal wrongs, advocate responsibility for criminal conduct as between
the offender and society or 'make up' for perceived social injustices by
the imposition of sentences that do not reflect the seriousness of the
crime," three judges ruled in unanimous decisions yesterday.

Lawyer David Tanovich said "the court has pretty much closed the door,
unless you can prove a link between systemic racism and the offence."

Mr. Tanovich, who teaches at the University of Windsor, had represented
Tracy-Ann Spencer in 2002, when she received no jail time but house arrest
for two years less a day.

She had been convicted of importing 733 grams of cocaine in her suitcase.

In the 13-page decision released yesterday, the judges overturned the
conditional sentence. Ms. Spencer will be sent to jail for 20 months, but
can apply for bail if the ruling is appealed to the Supreme Court of
Canada, as some observers expect.

The appropriate sentence would have been 40 months in custody, the judges
said, but they gave the 27-year-old mother of three credit for the time she
served under house arrest.

The judges, Mr. Justice David Doherty, Mr. Justice Dennis O'Conner and
Madam Justice Eileen Gillese, also rejected similar arguments in two other
cases also appealed by the Crown.

The judges said Marsha Hamilton, 29, and Donna Mason, 34, should have
received jail time for their offences. But since the women have almost
entirely served their conditional sentences -- Ms. Hamilton received 20
months under house arrest and Ms. Mason two years less a day -- the judges
found that little would be achieved by sending them to jail for a few more
months.

The Court of Appeal had opened the doors to the systemic-racism defence in
a 2002 case, Regina v. Quinn Borde.

While the court dismissed systemic racism as a mitigating factor in the
Borde case, it said that lawyers could argue that black women constitute a
vulnerable group because they are the victims of racial and gender bias in
some instances.

In his earlier sentencing in the Hamilton and Mason cases, Mr. Justice
Casey Hill of the Ontario Superior Court found that systemic racism and
gender bias were key factors in the women agreeing to smuggle drugs.

Both are black single mothers on welfare, poorly educated and with no
employment skills.

"In my view, systemic racism and background factors, identified in this
case . . . should logically be relevant to mitigate the real consequences
for cocaine importers conscripted as couriers," Judge Hill wrote.

But the Court of Appeal judges disagreed and criticized Mr. Hill for using
unproven statistics he pulled from the Internet as evidence that blacks
constitute a disproportionate number of people in the criminal-justice system.

"While no doubt well-intentioned, the trial judge effectively took on the
combined role of advocate, witness and judge, thereby losing the appearance
of a neutral arbiter," the judges said.

In the other case, Ms. Spencer worked and received child support from the
two fathers of her three children, so the judges found that poverty was not
the reason for her smuggling cocaine.

Nor did she plead guilty, as did the other two women. All these are
mitigating factors, they said, but not enough to offset the seriousness of
the offence.